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THE image of a lawyer most widely held in the Pakistani imagination is monochromatic. And by this I do not mean that it is as characteristically black and white as a lawyer’s court uniform, but that it is one-dimensional. We generally expect all lawyers to be litigators, to attend court and to plead cases theatrically before a solemn judge. In reality, however, lawyers come in many shades, and the labels by which they announce their vocations — barristers, solicitors, advocates, counselors, advisers — are as numerous as they may be confusing.
Interesting as it may be to explore the different nuances of legal professionals, my focus here is on the distinction between lawyers engaged in independent private practice (lawyers who set up shop either on their own or in partnership with their colleagues to represent clients in court and/or to advise them in their commercial dealings for a negotiated fee) and lawyers in in-house employment (all lawyers who take up regular employment with governmental, public or private establishments at a pre-agreed salary).
The significance of this distinction becomes clear with reference to the Legal Practitioners and Bar Councils Act 1973. Although the act recognises as a lawyer any person who enrols with a bar council after meeting basic legal academic and vocational requirements, the rules of conduct and ethics and penalties for misconduct it prescribes are designed for independent practitioners, particularly litigators. Whilst this does not prevent conscientious non-litigators from adhering to such rules, it becomes trickier to do so for in-house counsels whose loyalty to immediate employers is likely to be far greater than the fear of a distant, toothless bar council.
Uniform accountability is needed for all lawyers in Pakistan.
The failure of the legal profession to prescribe rules of conduct and ethics for in-house counsels combined with the relative isolation from their legal colleagues in which they work not only makes in-house counsels more vulnerable to the dictates of their employers but also threatens to compromise the quality of their advice or representation. The inherent weakness of their position becomes more pronounced when in-house counsels are employed by a government or governmental authority where the implications of their decisions are likely to be graver, the pressure to conform higher and the threat of dismissal more damaging.
It is a testament to the significance of the role of in-house counsels that earlier this month, the Centre for Ethics and Law at University College London launched the report of an initiative designed to map their ‘moral compass’. Based on a survey of more than 400 in-house counsels employed in the government, public and private sectors, the report revealed that counsel prioritised client interest more often than “integrity and effectiveness” and prioritised integrity and effectiveness more often than “independence and legality”. It found that this shift in priorities away from those prescribed by professional codes was as much due to the organisational environment as it may be to individual preferences.
In fact, it emphasised that viewing ethical conduct, as an individual concern was both “complacent and dangerous”. And that “individuals, systems and cultures mesh together in meaningful and measurable ways to increase or reduce ethical risk”. Most important, the report warned that “such ethical risk [not only] puts individual lawyers at risk of professional misconduct but it also encourages poor quality decision-making for the organisations that employ in-house lawyers…[and] can lead to catastrophic error”.
If this is the situation in the UK, which prides itself on nurturing and maintaining one of the most efficient, principled legal systems, imagine how much worse it may be in Pakistan where even litigators, who are technically bound by multiple rules of licensing and conduct are almost never reprimanded for misconduct? The fact is, that in-house counsels in Pakistan fall through the wide cracks in the legal system. Not only does the legal profession treat them as invisible, they also feel alienated from it and, therefore, constrained to align more fully with the interests of their employers.
However, the real victim of this relationship of indifference is not the in-house counsel but the rule of law. The advice in-house counsels give has tremendous bearing on the way business is conducted and government is run: the weaker the advice, the greater the cost of subsequent litigation, the higher the uncertainty, and the severer the risk of corruption. It is not a solution, however, for in-house counsels or their employers to devise codes of conduct. What Pakistan needs is uniform accountability for lawyers of all types and this can only be achieved if the Pakistan Bar Council adopts realistic, focused and thorough codes but also — and which is more difficult — enforces them.
The writer is a barrister and an advocate of the Supreme Court of Pakistan.
Published in Dawn, June 13th, 2016
